State of Iowa v. Thomas Patrick Olofson

• Court: Court of Appeals of Iowa
• Decided: June 11, 2014
• Docket: 13-1220
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 13-1220 Filed June 11, 2014

STATE OF IOWA, Plaintiff-Appellee,

vs.

THOMAS PATRICK OLOFSON, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Christopher L.

McDonald, Judge.

A defendant appeals the sentence imposed following his guilty pleas,

asserting the court abused its discretion in ordering consecutive sentences.

AFFIRMED.

Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney

General, John P. Sarcone, County Attorney, and Celene Gogerty, Assistant

County Attorney, for appellee.

Considered by Vogel, P.J., and Doyle and Mullins, JJ. McDonald, J.,

takes no part. 2

VOGEL, P.J.

Thomas Olofson appeals the sentence the court imposed following his

guilty pleas to two counts of forgery, in violation of Iowa Code section

715A.2(1)(c) and .2(2)(a)(3) (2013). He claims on appeal the court abused its

discretion in ordering the sentences for the forgery convictions to run

consecutively to his parole violation sentence. Because we find no abuse of the

district court’s discretion, we affirm the conviction and sentence.

Pursuant to a plea agreement, Olofson entered guilty pleas to two counts

of forgery, admitting he printed counterfeit checks and presented them at local

gas stations on two different days, receiving goods or services in exchange. The

plea agreement called for the two forgery convictions to be served consecutively,

for a total of ten years, but the parties were free to argue whether these

sentences should be served concurrently or consecutively to a separate

sentence Olofson was serving for violating his parole. Pursuant to the plea

agreement, the State also agreed to dismiss a number of other forgery charges,

as well as a theft charge, that were pending at the time, though Olofson would be

required to make restitution on all charges. Olofson proceeded to immediate

sentencing, waiving the preparation of a presentence investigation report and his

right to file a motion in arrest of judgment to challenge his guilty plea. The court

ordered the two forgery sentences to be served consecutively, consistent with

the plea agreement, and also ordered these sentences to be served consecutive

to the sentence Olofson was serving for violating his parole.

On appeal, Olofson claims the court abused its discretion and points out

he accepted responsibility for his actions by pleading guilty and expressed 3

remorse. He also points out his substance abuse problem. He asks that the

portion of his sentence requiring his forgery sentences to be served

consecutively to the parole violation sentence be vacated and the case

remanded for a limited resentencing before a different judge on the question of

whether the forgery sentences and the parole violation sentence should be

served consecutively or concurrently.

We will not reverse a sentencing decision of the district court that is within

the statutory limits absent an abuse of discretion or a defect in the sentencing

procedure. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). The

sentencing court’s decision is cloaked with a strong presumption in its favor. Id.

“Judicial discretion imparts the power to act within legal parameters according to

the dictates of a judge’s own conscience, uncontrolled by the judgment of

others.” Id. at 725. We will not second guess the decision, but our role on

appeal is only to determine if the decision made was unreasonable or based on

untenable grounds. Id.

Iowa Code section 908.10 provides, in part, when a person is convicted

and sentenced to incarceration for a felony committed while on parole, the new

sentence shall be served consecutively with the term imposed for the parole

violation, unless the court orders the terms to be served concurrently. The court

in this case applied the statutory presumption of consecutive sentences. Olofson

does not claim the court made any type of procedural error when imposing the

sentence. See, e.g., State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App.

1994) (“The use of an impermissible sentencing factor is viewed as an abuse of

discretion and requires resentencing.”). Olofson simply disagrees with the 4

court’s decision. We find no abuse of discretion in the court’s sentencing

decision. We therefore affirm the conviction and sentence.